Research On The Trade Secret Infringement Litigation Of The Burden Of Proof

As the proverb goes,"where the burden of proof lies,there is the place to lose the case".Trade secrets due to secrecy,intangibility and other characteristics make it more complex than the general civil tort litigation.Therefore,in the commercial secret tort litigation,scientific and reasonable allocation of the parties to the responsibility of proof is particularly critical,which not only affects the litigation burden of the parties,but also affects the process and results of the case litigation.This thesis is divided into four chapters.The first chapter is to analyze and discuss the specific matters to be levied in the trade secret infringement litigation,and clarify the specific contents to be proved in the trade secret infringement litigation,while analyzing the legal connotation of each element to be proved and the difficulty of proof,which is conducive to the following research on the allocation of the burden of proof in the trade secret infringement litigation.Chapter two analyzes the specific provisions concerning the allocation of the burden of proof in trade secret infringement litigation before and after the implementation of the Anti-Unfair Competition Law in 2019 from the level of legal norms,and then selects typical cases related to the allocation of the burden of proof in trade secret infringement cases for analysis and research,according to which the following three problems are proposed: the allocation of the burden of proof for the secret element is unclear;the subordination of the burden of proof for the secrecy element is unclear;and the plaintiff bears an excessive burden of proving the infringement.The third chapter discusses the overseas experience in the allocation of the burden of proof in trade secret infringement litigation,which focuses on the study of the United States on the secret element of the burden of proof rules,as well as Japan on the secret element of the proof of subordination,and finally combined with China’s actual experience of the above-mentioned reasonable analysis,and then reasonably inferred that the interpretation of Article 32 on the secret element of the provisions for the application of the shift of the burden of proof,rather than the inversion of the burden of proof;confidentiality element as the primary proof of subordination than the secret element as the primary proof of subordination has more reasonable,convenient.The fourth chapter proposes to improve China’s trade secret infringement litigation in the allocation of the burden of proof.The use of judicial interpretation or the introduction of guidance cases and other ways to clarify the secret elements of the application of the burden of proof transfer system,lower the standard of proof.The secrecy element is clearly in the primary position of proof,both to reduce the difficulty of proof,but also to improve judicial efficiency.It is recommended that a ladder of proof be implemented to reasonably allocate the burden of proof borne by both parties to the litigation from the perspective of balancing interests.